State v. Ellard.

Decision Date10 August 1948
PartiesSTATE v. ELLARD.
CourtNew Hampshire Supreme Court
OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

Transferred from Superior Court, Rockingham County; Wescott, Judge.

Leon O. Ellard was convicted of embezzlement, and case was transferred on his exceptions.

Exceptions overruled.

Indictment, for embezzlement under R.L. c. 450, § 28. Trial by jury, with a view, resulting in a verdict of guilty. At the close of the State's evidence and at the close of all the evidence the respondent excepted to the refusal of the Court to quash the indictment. Exceptions were taken during the trial to the admission and exclusion of evidence and to the Court's refusal to give a requested in struction. After the verdict the defendant filed numerous motions, excepted to the admission and exclusion of evidence at the hearings upon the motions and also to the Court's findings and rulings in so far as the motions were denied.

The indictment charged in substance that the respondent ‘an agent and servant of the New Hampshire State Liquor Commission on July 28th, 1947 embezzled the sum of $4136.60 of the money of the New Hampshire State Liquor Commission which had come into his possession as agent and servant of the commission, he being the manager of the State Liquor Store in Salem. His defense was that on the day in question as he was conveying receipts of liquor sales totalling $10,939.95 to the bank in Derry for deposit he was held up and robbed of the entire amount. At the trial the State was allowed to show, subject to the respondent's exception, for the purpose of indicting a design on his part, that for nearly two years he had been behind in his deposits for periods varying from one day to as much as five days at the time of the alleged holdup. Evidence was also introduced for the same purpose through experts that the accused had been ‘kiting’ during this time, that is, using the deposits of later dates to cover the shortage on prior days.

It appears that five days before the end of the trial one of the jurors became incapacitated by reason of the death of his wife and all the attorneys involved agreed, with the sanction of the Court and with the knowledge and without objection by the respondent who was informed of the situation by his lawyer, to go on with eleven men. After a verdict of guilty was returned the defendant for the first time objected to this arrangement and moved to quash and in arrest of judgment, among other grounds, because the agreement to go on with eleven men was made without his knowledge or consent. To the denial of this motion and the Court's findings on the matter exceptions were taken. Further facts appear in the opinion. Transferred by Wescott, J.

DUNCAN, J., dissenting.

Gordon M. Tiffany, Asst. Atty. Gen., (Wyman P. Boynton, of Portsmouth, on the brief), for the State.

William H. Sleeper and Robert Shaw, both of Exeter, for respondent.

BLANDIN, Justice.

The respondent contends that the indictment was faulty, first, because it does not set out that the respondent was ‘the officer, agent, or servant of a corporation, public or private, or the clerk, servant or agent of a person within the meaning of R.L. c. 450, § 28, and secondly, he objects because it does not ‘fully and plainly, substantially and formally,’ describe the crime of which he is accused. Both these exceptions are overruled. The State Liquor Commission created by R.L. c. 170 and for which the defendant worked, is in effect a State agency and a part of the State government. St. Regis Paper Co. v. New Hampshire Water Resources Board, 92 N.H. 164, 166, 167, 26 A.2d 832. The State itself is a body politic. Const., Pt. II, art. 1. Under the provisions of R.L. c. 7, § 9 the word person may ‘extend and be applied to bodies * * * politic as well as to individuals.’ Dinnin v. Hutchins, 75 N.H. 470, 471, 76 A. 126. All monies and property in possession of the commission or its employees belong to the State which the commission and its employees serve and to which they are responsible. It may fairly be said that the commission in the realm of facts ‘has but imaginary existence apart from that of the State itself’ and that the respondent was a servant of the State. See St. Regis Paper Co. v. New Hampshire Water Resources Board, supra [92 N.H. 164, 166, 167, 26 A.2d 836]. This is in keeping with the facts of the situation and consistent with the comprehensive construction which our decisions hold should be given to R.L. c. 450, § 28, State v. Barter, 58 N.H. 604, 605.

The indictment is proper under our laws. It is in the usual form and sets forth the crime “with sufficient definiteness' so that he can prepare for trial.' State v. Rousten, 84 N.H. 140, 143, 146 A. 870, 872. This is all the information to which the accused is entitled. State v. Langelier, N.H., 58 A.2d 315, and cases cited; State v. Clapp, 94 N.H. 62, 46 A.2d 119; State v. Fogg, 92 N.H. 308, 309, 30 A.2d 491. The defendant's argument confuses evidence tending to show a series of petty arrearages for some months prior to July 28, 1947, which indicated his intent to commit the offense, with evidence of the crime itself. Upon analysis it appears the respondent really objects because the indictment did not tell him how the State was to prove its case. He was not entitled to this information and the testimony, to the admission of which he excepted, was competent to show his intent and the system by which he effected it. State v. Skaff, 94 N.H. 402, 405, 54 A.2d 155, and cases cited; State v. Hinton, 84 N.H. 75, 79, 146 A. 503; Wig. 3d Ed., Vol. 1, §§ 329, 331.

The respondent's exceptions to the opening statement of the solicitor appear to raise no substantial questions. There is no indication that any general statement made by the solicitor, and which might be construed as stating his belief, was prejudicial as a matter of law and the Court in his instructions which the jury are presumed to follow (State v. Slocinski, 89 N.H. 262, 267, 197 A. 560 and cases cited) made it plain to them that the solicitor's beliefs were to be disregarded. A thorough examination of the opening statement reveals no grounds for a new trial.

The bulk of the exceptions to evidence seem to be directed to testimony indicating petty arrearages and ‘kiting’ over a period of nearly two years prior to July 28th, which were introduced to show design on the part of the accused. It is well settled law in this State that such evidence is competent for this purpose. State v. Skaff, supra, State v. Hinton, supra; Wig.Ev., 3d Ed., Vol. 1, §§ 329, 331.

Exceptions were also taken to testimony introduced by the State through a witness Robert J. Hart, Director of Audits, Accounts and Merchandise of the State Liquor Commission, as to what certain audits showed. The evidence was competent to explain a somewhat complicated system by the man who had charge of it and if it may be regarded as an opinion it seems it was clearly within the Court's discretion to admit it. Dowling v. L. H. Shattuck, Inc., 91 N.H. 234, 17 A.2d 529; State v. White, 91 N.H. 109, 14 A.2d 253. Furthermore it was supplemented by testimony of a store auditor who actually did the work in the field, which is a further reason why the exception fails. Vallee v. Spaulding Fiber Company, 89 N.H. 285, 290, 197 A. 697; Duteny v. Pennichuck Water Company, 84 N.H. 65, 69, 146 A. 161. Other opinion evidence was also excepted to on the grounds it invaded the province of the jury, but here, again, there appears no abuse of the Court's discretion and therefore the respondent takes nothing by this exception. Dowling v. L. H. Shattuck, Inc., supra. A graph made to simplify the complicated and voluminous set of figures for the jury and to serve as a summary, although excepted to by the respondent, offers no grounds for reversal. Dowling v. L. H. Shattuck, Inc., supra; State v. La Bombarde, 82 N.H. 493, 494, 136 A. 268, Wig.Ev., 3d Ed., Vol. 4, § 1230. The graph also demonstrated the relation between the respondent's repayments on borrowings from sources outside the store with his delay in depositing. No error appears in the admission of this evidence since it had a bearing on his motive and intent and the method by which he effected his object. State v. White, supra, and cases cited; State v. Skaff, supra; State v. Hinton, supra; Wig. §§ 329, 331, supra.

During the trial a State Trooper was allowed to testify, subject to exceptions, as to an entry made in the regular course of business in the State Police Log relative to a telephone call, purportedly from the defendant, reporting the alleged holdup at 1:22 P.M. on July 28th. The ground of the objection stated at the trial was that the respondent's voice was not identified. However, there was other evidence that he did call...

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